Paul Browne
University of Notre Dame
Vice President for Public Affairs and Communications

NOTRE DAME, IN — Here are late-breaking developments in the abortifacient/contraceptive mandate litigation:

Notre Dame has confirmed our assumption that it will comply with the abortifacient/contraceptive mandate today. In a statement issued yesterday, the university said:

Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program.

As part of an ongoing legal action, however, the program may be terminated once the university's lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.

You have probably heard that Justice Sonia Sotomayor of the United States Supreme Court issued an order temporarily blocking the government from enforcing the mandate against Little Sisters of the Poor and Christian Brothers Services. They had lost in both the trial court and the Court of Appeals for the Tenth Circuit.

A caution flag is in order. The news reports have generally slid over the fact that the order lasts only until Friday, when the government’s response is due, as well as the fact that, as the Circuit Court said, the case is “unique.” For reasons too complex to describe here, the lower courts concluded that the government lacked authority to make the mandate effective as to these particular plaintiffs.

That cannot be said of other plaintiffs, and accordingly were Justice Sotomayor to revoke her order it would signify nothing as to other cases, though her action would almost surely be widely misconstrued. A favorable decision, of course, would be heartening.

Two courts of appeal have blocked the government from enforcing the mandate in rulings contrary to that of the court of appeals in the Notre Dame case: the Court of Appeals for the District of Columbia as to Catholic University and the Court of Appeals for the Sixth Circuit as to a number of plaintiffs including the Diocese of Nashville and Aquinas College.

The mandate went into force today as to a large number of plaintiffs who are waiting for decisions as well as religious organizations who haven’t sued and are awaiting the outcome of litigation. It will become effective as to others during the year as their plans come up for renewal. The potential fines are staggering – up to $100 per day per employee.

The bishops have now asked the President for the relief that is so plainly called for in the name of respect for institutional religion and the calls of personal conscience.

In a compelling letter to the President describing the situation, Archbishop Josephy Kurtz, the new President of the U. S. Conference of Catholic Bishops, reminded the President of the exemptions and exceptions he had made for others, and concluded:

I understand that legal issues in these cases will ultimately be settled by the Supreme Court. In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1. I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.

The situation is fluid and fast developing. We will do our best to keep you advised.

If, like us, you want to see an authentic Catholic renewal at Notre Dame, please take a few minutes to read our Annual Letter and consider making a tax-deductible donation to Sycamore Trust.

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Contact eMailsAfter reading this bulletin, you might wish to contact one or more of the people below. If you have any trouble with the links, please let our webmaster know. Rev. John I. Jenkins, C.S.C.President, Notre Dame
and C.S.C. Fellow